Custodial Agreement
Exhibit
99.2j(i)
LaSalle
Bank National Association
|
Mailing
Address:
000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
Agreement
dated as of April 30, 2008 between LaSalle Bank National Association (the
"Custodian") and the DMR Mortgage Opportunity Fund LP(the
"Customer").
1.
Employment of
Custodian. The Customer hereby employs the Custodian as custodian of all
assets of the Customer which are delivered to and accepted by the Custodian (the
"Property") pursuant to the terms and conditions set forth herein. For purposes
of this Agreement, "delivery" of Property shall include the acquisition of a
security entitlement (as that term is defined in the Illinois Uniform Commercial
Code ("UCC")) with respect thereto. Without limitation, such Property shall
include stocks and other equity interests of every type, evidences of
indebtedness, other instruments representing same or rights or obligations to
receive, purchase, deliver or sell same and other non-cash investment property
of the Customer ("Securities") and cash from whatever source and in whatever
currency ("Cash"), provided that the Custodian shall have the
right, in its sole discretion, to refuse to accept as Property any property that
the Custodian considers not to be appropriate or in proper form for deposit for
any reason. The Custodian shall not be responsible for any property of the
Customer held or received by the Customer or others and not delivered to and
accepted by the Custodian or any of its Sub-custodians (as that term is defined
in Section 4 below) as hereinafter provided.
2.
Custody
Account. The Custodian agrees to establish and maintain one or more
custody account(s) on its books in the name of the Customer (the "Account") for
any and all Property consisting of Securities from time to time received and
accepted by the Custodian or any of its Sub-custodians for the Customer. Such
initial account(s) shall be listed on Exhibit A attached hereto, which list
shall be updated and distributed to the Customer from time to time. Any and all
Property consisting of Cash from time to time received and accepted by the
Custodian or any of its Sub-custodians for the account of the Customer shall be
credited to the Account on the books of the Custodian. The Customer acknowledges
its responsibility as a principal for all of its obligations to the Custodian
arising under or in connection with this Agreement, notwithstanding that it may
be acting on behalf of other persons, and warrants its authority to deposit in
the Account, any Property received therefor by the Custodian or its
Sub-custodian and to give, and authorize others to give, instructions relative
thereto pursuant to the terms of this Agreement. The Customer further agrees
that the Custodian shall not be subject to, nor shall its rights and obligations
under this Agreement or with respect to the Account, be affected by, any
agreement between the Customer and any other person to which the Custodian is
not a party.
The
Custodian shall hold, keep safe and protect as custodian for the Account, on
behalf of the Customer, all Property in the Account and to the extent such
Property constitutes financial assets for purposes of the UCC, shall maintain
those financial assets as security entitlements in
1
|
|
(a)
|
collect
all interest and dividends and all other income and payments, whether paid
in cash or in kind, on the Property, as the same become payable and credit
the same to the Account;
|
|
|
(b)
|
present
for payment all Securities held in the Account which are called, redeemed
or retired or otherwise become payable and all coupons and other income
items which call for payment upon presentation to the extent that the
Custodian is actually aware of such opportunities and credit the cash
received to the Account;
|
|
|
(c)
|
(i)
exchange Securities where the exchange is purely ministerial and no
exercise of discretion is required (including, without limitation, the
exchange of temporary securities for those in definitive form and the
exchange of warrants, or other documents of entitlement to securities, for
the Securities themselves); and (ii) when notification of a tender or
exchange offer (other than ministerial exchanges described in (i) above)
is received for the Account, forward such Instructions to the Customer,
provided, however, that if such Instructions are not received in time for
the Custodian to take timely action, no action shall be taken with respect
thereto;
|
|
|
(d)
|
execute
in the Customer's name for the Account, whenever the Custodian deems it
appropriate, such ownership and other certificates as may be required to
obtain the payment of income from the
Property;
|
|
|
(e)
|
appoint
brokers and agents for any of the ministerial transactions involving the
Securities described in (a) - (d), including without limitation,
affiliates of the Custodian or any Sub-custodian;
and
|
|
|
(f)
|
distribute
or invest cash received in the Account as Principal and Interest per the
standing instructions attached hereto as Exhibit B-1 and Exhibit B-2
unless otherwise instructed by the
Customer.
|
Notwithstanding
any other provisions contained herein or in any Instructions to the contrary,
the Customer agrees that all cash amounts received in the Account will be
disbursed or invested per the standing instructions provided by the Customer
attached hereto as Exhibit B-1 and Exhibit B-2 on the next succeeding Business
Day (including proceeds from the sale of securities). The Customer can also
instruct the Custodian to make one-time disbursements by providing Instructions
in the form of Exhibit I attached hereto. The Custodian shall deliver, subject
to Section 9 below, any and all Property in the Account in accordance with
Instructions and, in connection therewith, the Customer will accept delivery of
Securities of the same class and amount in place of those contained in
the Account. "Business Day" means a day other than
2
a
Saturday, Sunday or other day on which commercial banks in Chicago, Illinois are
authorized or required to by law to close.
3. Records, Ownership of
Property and Statements. The ownership of the Property, whether
maintained directly by the Custodian or indirectly through a Sub-custodian or a
Securities System (as that term is defined in Section 4) in which the Custodian
participates, shall be clearly recorded on the Custodian's books as belonging to
the Account and not for the Custodian's own interest. The Custodian shall keep
accurate and detailed accounts of all investments, receipts, disbursements and
other transactions for the Account. All accounts, books and records of the
Custodian relating to the Account shall be open, upon reasonable notice at its
offices in Chicago, Illinois, from the Customer to the Custodian, to inspection
and audit at reasonable frequencies and times during normal business hours by
the Customer or its agents.
Subject
to the election of the Customer as hereinafter provided, the Custodian will
supply to the Customer on a monthly basis, a statement in respect to any
Property in the Account maintained by the Custodian or by a Sub-custodian. In
the absence of the filing in writing with the Custodian by the Customer of
exceptions or objections to any such statement within sixty (60) days of the
delivery thereof, the Customer shall be deemed to have approved such statement;
and in such case or upon written approval of the Customer of any such statement,
such statement shall be presumed to be correct for all purposes with respect to
all information set forth therein. In addition, the Customer understands that it
has the option to elect to participate in the Custodian's Trust View Express
(web) and Cash Pro Web products which can provide the Customer, on a daily
basis, with the ability to view on-line or to print on hard copy (the
"Electronic On-Line System): (i) all transactions involving the delivery in and
out of the Account on a free or payment basis; (ii) payments of principal and
interest; (iii) pending transactions (excluding outgoing wires); and (iv)
Securities and cash in the Account together with market values thereof. The
Customer agrees that its receipt of online statements and all other related
online communications will satisfy all of LaSalle's existing legal and
contractual obligations to provide statements and reports with respect to the
Customer's Account. Access to the Custodian's Trust View Express (web) and Cash
Pro Web products will be made available to the Customer upon (i) the delivery by
the Customer to the Custodian of a completed Trust Account Web Access Enrollment
Form in the form attached hereto as Exhibit K-1 and (ii) the execution and
delivery by the Customer to the Custodian of the Trust Web Site Services
Agreement in the form attached hereto as Exhibit K-2.
4. Sub-custodians and
Securities Systems. The Customer authorizes and instructs the Custodian
to maintain the Property in the Account directly in one of its branches or
indirectly through custody accounts which have been established by the Custodian
with the following other securities intermediaries: (a) another bank or trust
company or branch thereof located within or outside of the United States
(individually, a "Sub-custodian"), or (b) a securities depository or clearing
agency or system in which the Custodian or Sub-custodian participates
(individually, a "Securities System"). The Custodian shall select in its sole
discretion the entity or entities in the custody of which any of the Securities
may be so maintained or with which any Cash may be so deposited. The Custodian
may, at any time in its discretion, upon written notification to the Customer,
terminate the employment of any Sub-custodian or Securities System.
5. Holding of Securities,
Nominees, etc. Securities in the Account which are
3
maintained
by the Custodian or any Sub-custodian may be held directly by such entity in the
name of the Customer or in bearer form or maintained, in the Custodian's or the
Sub-custodian's own name, in the name of the Custodian's or Sub-custodian's
nominee. Securities which are maintained through a Sub-custodian or are eligible
for deposit in a Securities System as provided above may be maintained with the
Sub-custodian or the Securities System in an account for the Custodian's or
Sub-custodian's customers. Securities maintained with the Securities System
shall be maintained subject to the rules of that Securities System governing the
rights and obligations among the Securities System and its
participants.
6. Proxies, etc. If the
Custodian shall receive any proxies, notices, reports or other communications
relative to any of the Securities in the Account, the Custodian shall as soon as
practicable transmit to the Customer, or notify the Customer of the receipt of,
such proxies, notices, reports or other communications. At the direction of the
Customer, the Custodian, or its nominees or agents, shall vote upon or in
respect of the Securities in the Account, execute any form of proxy to vote
thereon, or give any consent or take any similar action with respect thereto. In
the absence of such direction from the Customer, the Custodian shall have no
obligation to take any of the foregoing actions in respect of the Securities in
the Account.
7. Settlement
Procedures. Domestic Delivery Instructions for the Custodian are attached
hereto as Exhibit H.
(a) The
proceeds from the sale or exchange of Securities will be credited and the cost
of such Securities purchased or acquired will be debited to the Account. If the
Customer has directed the Custodian to disburse cash received into the Account,
proceeds from the sale of a Security will remain in the Account until the
following Business Day. If the Customer has directed the Custodian to invest
cash received into the Account, proceeds from the sale of a Security will be
invested by the Custodian in the manner directed by the Customer on the Business
Day on which such proceeds are received, or, to the extent that such proceeds
are received after the cut-off time for the selected investment, on the
following Business Day. Settlement and payment for Securities received for the
Account and delivery of Securities maintained for the Account may be effected in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs. The Custodian shall not be liable for any loss which results
from effecting transactions in accordance with the customary or established
securities trading or securities processing practices and procedures in the
applicable jurisdiction or market.
(b) Settlement
of trades of assets into the Account and posting of income and principal
payments into the Account will be on an actual basis. The Custodian shall not be
required to comply with any Instructions to settle the purchase of any
securities for the Account, unless there are sufficient immediately available
funds in the Account. The Customer agrees that it will not use the Account to
facilitate the purchase of securities without sufficient funds in the Account
(which funds shall not include the proceeds of the sale of the purchased
securities).
(c) Securities
will be transferred, exchanged or delivered by the Custodian or a Sub-custodian
upon receipt by the Custodian of Instructions which include all information
required by the Custodian. Settlement and payment for Securities received for
the Account and delivery of Securities out of the Account may be effected in
accordance with the customary or established
4
securities
trading or securities processing practices and procedures in the jurisdiction or
market in which the transaction occurs.
8. Notice for Trades In
order to ensure proper settlement of trades, the Custodian requires notice via
email or facsimile of any upcoming trade activity 3 Business Days prior to
settlement and a completed Pending Trade Notice (attached hereto as Exhibit G)
shall be received no later than 1 Business Day prior to settlement date for both
book entry trades and physical trades. Any Pending Trade Notice sent to the
Custodian via facsimile or electronic mail from an individual listed as an
Authorized Signer (attached hereto as Exhibit D) or from the operations staff of
the Customer via electronic mail with a copy to an Authorized Signer, shall
constitute notice of a pending trade required pursuant to this Section 8 of the
Agreement. Physical sales that require the security being held by LaSalle to be
split prior to the settlement date require notice at least 7 Business Days prior
to the proposed settlement date and will be subject to the transfer agent's turn
around time for processing splits. In the event that there are multiple trades
for the same issue, a Pending Trade Notice must be completed as far as the Trade
Type and Form, with an attached Excel Spreadsheet with the Security Description
and all other trade information on the Notice for each bond.
9. Instructions. The
term "Instructions" means instructions from the Customer in respect of any of
the Custodian's duties hereunder which have been received by the Custodian at
its address set forth in Exhibit C (i) in writing in the form of either Exhibit
G or Exhibit I (including, without limitation, facsimile transmission) signed by
such one or more person or persons as the Customer shall have from time to time
authorized to give the particular class of Instructions in question and whose
name, title and specimen signature are attached hereto as Exhibit D; or (ii)
which have been transmitted electronically through the Cash Pro-Web
Electronic-On-Line System; or (iii) a telephonic or oral communication by one or
more persons as the Customer shall have from time to authorized to give the
particular class of Instructions in question and whose name is attached hereto
as part of Exhibit D; or (iv) upon receipt of such other form of instructions as
the Customer may from time to time authorize in writing and which the Custodian
agrees to accept. Instructions in the form of oral communications shall be
confirmed by the Customer in writing in the manner set forth in clause (i)
above, but the lack of such confirmation shall in no way affect any action taken
by the Custodian in reliance upon such oral instructions prior to the
Custodian's receipt of such confirmation.
The
Custodian shall have the right to assume in the absence of notice to the
contrary from the Customer that any person whose name is on file with the
Custodian pursuant to this Section has been authorized by the Customer to give
the Instructions in question and that such authorization has not been revoked.
The Custodian may act upon and conclusively rely on, without any liability to
the Customer or any other person or entity for any losses resulting therefrom,
any Instructions reasonably believed by it to be furnished by the proper person
or persons as provided above.
10. Standard of Care. The
Custodian shall be responsible for the performance of only such duties as are
set forth herein or contained in Instructions given to the Custodian which are
within the scope of its duties and not contrary to the provisions of this
Agreement. The Custodian will use reasonable care with respect to the
safekeeping of Property in the Account and in carrying out its obligations under
this Agreement. The Custodian shall not be responsible
5
for the
title, validity or genuineness of any Property or other property or evidence of
title thereto received by it or delivered by it pursuant to this Agreement and
shall be held harmless in acting upon, and may conclusively rely on, without
liability for any loss resulting therefrom, any notice, request, consent,
certificate or other instrument reasonably believed by it to be genuine and to
be signed or furnished by the proper party or parties, including, without
limitation, Instructions, and shall be indemnified by the Customer for any
losses, damages, costs and expenses (including, without limitation, the fees and
expenses of counsel) incurred by the Custodian and arising out of any action
taken or omitted by the Custodian hereunder and without gross negligence, bad
faith or willful misconduct on the part of the Custodian. With respect to a
Securities System, the Custodian shall only be responsible or liable for losses
arising from employment of such Securities System caused by the Custodian's
gross negligence, bad faith or willful misconduct. In the event of any loss to
the Customer by reason of the gross negligence, bad faith or willful misconduct
of the Custodian or its Sub-custodian, the Custodian shall be liable to the
Customer to the extent of the Customer's actual damages at the time such loss
was discovered without reference to any special conditions or circumstances. To
the extent that the Custodian obtains or provides market values of Securities in
the Account to the Customer, the Customer hereby acknowledges that the Custodian
now obtains and will in the future obtain information on such values from
outside sources which the Custodian deems to be reliable, and confirms that the
Custodian does not verify nor represent or warrant either the accuracy or the
completeness of any such information furnished, and the Custodian shall be
without liability in selecting and using such sources and furnishing any
information derived therefrom. In no event shall the Custodian be liable for any
indirect, incidental, special, consequential or punitive damages. The Custodian
shall be entitled to rely, and may act, on advice of counsel (who may be counsel
for the Customer) on all matters and shall be without liability for any action
reasonably taken or omitted pursuant to such advice.
In the
event the Customer subscribes to the Electronic On-Line System, the Customer
shall be fully responsible for the security of the Customer's connecting
terminal, access thereto and the proper and authorized use thereof and the
initiation and application of continuing effective safeguards and the Customer
agrees to defend, indemnify and hold the Custodian harmless from and against any
and all liabilities, losses, damages, costs, including attorneys' fees and every
other expense of every nature incurred by the Custodian as a result of any
improper or unauthorized use of such terminal by the Customer or by others on
the Customer's premises.
All
collections of funds or other property paid or distributed in respect of
Securities in the Account shall be made at the risk of the Customer. Subject to
the exercise of reasonable care, the Custodian shall have no liability for any
loss occasioned by delay in the actual receipt of notice by the Custodian or by
its Sub-custodian of any payment, redemption or other transaction regarding
Securities in the Account in respect of which the Custodian has agreed to take
action as provided in Section 2 hereof The Custodian shall not be liable for any
loss resulting from, or caused by, acts of governmental authorities (whether de
jure or de facto), including, without limitation, nationalization,
expropriation, and the imposition of currency restrictions; acts of war,
terrorism, insurrection or revolution; strikes or work stoppages; the inability
of a local clearing and settlement system to settle transactions for reasons
beyond the control of the Custodian; hurricane, cyclone, earthquake, volcanic
eruption, nuclear fusion, fission, radioactivity or other acts of
God.
6
The
Custodian shall have no liability in respect of any loss, damage or expense
suffered by the Customer, insofar as such loss, damage or expense arises from
the performance of the Custodian's duties hereunder by reason of the Custodian's
reliance upon records that were maintained for the Customer by entities other
than the Custodian prior to the Custodian's employment under this
Agreement.
The
provisions of this section shall survive termination of this
Agreement.
11. Investment Limitations and
Legal or Contractual Restrictions or Regulations. The Custodian shall not
be liable to the Customer and the Customer agrees to indemnify the Custodian and
its nominees, for any loss, damage or expense suffered or incurred by the
Custodian or its nominees arising out of any violation of any investment
restriction or other restriction or limitation applicable to the Customer
pursuant to any contract or any law or regulation. The provisions of this
Section shall survive termination of this Agreement.
12. Fees and Expenses.
The Customer agrees to pay to the Custodian such compensation for its services
pursuant to this Agreement, including if elected by the Customer, the Electronic
On-Line System, as may be mutually agreed upon in writing from time to time and
the Custodian's out-of-pocket or incidental expenses in connection with the
performance of this Agreement, including (but without limitation) legal fees.
The initial fee schedule is set forth in Exhibit E attached hereto. Such fees
will not be abated by, nor shall the Custodian be required to account for, any
profits or commissions received by the Custodian in connection with its
provision of custody services under this Agreement. The Customer hereby agrees
to hold the Custodian harmless from any liability or loss resulting from any
taxes or other governmental charges, and any expense related thereto, which may
be imposed, or assessed with respect to any Property in the Account and also
agrees to hold the Custodian, its Sub-custodians, and their respective nominees
harmless from any liability as record holder of Property in the Account. The
Custodian is authorized to charge the Account for such items. Any fees or
expenses invoiced to the Customer which become past due for ninety (90) days or
longer may be deducted by the Custodian from any Cash in the Account. The
provisions of this Section shall survive the termination of this
Agreement.
13. Amendment, Modifications,
etc. No provisions of this Agreement may be amended modified or waived
except in writing signed by the parties hereto. No waiver of any provision
hereto shall be deemed a continuing waiver unless it is so designated. No
failure or delay on the part of either party in exercising any power or right
under this Agreement operates as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise thereof or
the exercise of any other power or right.
14. Termination. This
Agreement may be terminated by the Customer by thirty (30) days written notice
or by the Custodian upon thirty (30) days' written notice; provided that notice
by the Customer shall specify the names of the persons to whom the Custodian
shall deliver the Securities and Cash in the Account. If notice of termination
is given by the Custodian, the Customer shall, within thirty (30) days following
the giving of such notice, deliver to the Custodian a written notice specifying
the names of the persons to whom the Custodian shall deliver the Securities and
Cash in the Account. The Custodian will deliver such
7
Securities
and pay such Cash to the persons so specified, after payment of any undisputed
fees and costs which the Custodian determines to be owed to it under this
Agreement. In addition, the Custodian may in its discretion withhold from such
delivery such Cash and Securities as may be necessary to settle transactions
pending at the time of such delivery. If within thirty (30) days following the
giving of a notice of termination by the Custodian, the Custodian does not
receive from the Customer a written notice specifying the names of the persons
to whom the Custodian shall deliver the Securities in the Account and to whom
the Cash in the Account shall be paid, the Custodian, at its election, may
deliver such Securities and pay such Cash to a bank or trust company doing
business in the State of Illinois to be held and disposed of pursuant to the
provisions of this Agreement, or may continue to hold such Securities and Cash
until a written notice as aforesaid is delivered to the Custodian, provided that
the Custodian's obligations shall be limited to safekeeping Account
assets.
15. Notices. Except as
otherwise provided in this Agreement, all requests, demands or other
communications between the parties or notices in connection herewith (a) shall
be in writing, hand delivered or sent by registered mail, email or facsimile
addressed to such address as shall have been furnished by the receiving party
and attached hereto as Exhibit C and (b) shall be deemed effective when
received, or, in the case of a email and facsimile, when sent to the proper
number and acknowledged by a proper confirmation.
16. Representations and
Warranties.
(a)
The Customer hereby represent and warrant to the Custodian that:
(i) the
employment of the Custodian and the allocation of fees, expenses and other
charges to the Account as herein provided, is not prohibited by law or any
governing documents or contracts to which it is subject;
(ii) the
terms of this Agreement do not violate any obligation by which it is bound,
whether arising by contract, operation of law or otherwise;
(iii) this
Agreement has been duly authorized by appropriate action and when executed and
delivered will be binding upon it in accordance with its terms;
(iv) it
will deliver to the Custodian a duly executed Secretary's Certificate in the
form of Exhibit F attached hereto or such other evidence of such authorization
as the Custodian may reasonably require, whether by way of a certified
resolution or otherwise; and
(v) it
will deliver to the Custodian the items identified on Exhibit J hereto or such
other evidence of identity as the Custodian may reasonably require.
(b)
The Custodian hereby represents and warrants to the Customer that:
(i)
the terms of this Agreement do not violate any obligation by which it is bound,
whether arising by contract, operation of law or otherwise;
8
(ii) this
Agreement has been duly authorized by appropriate action and when executed and
delivered will be binding upon it in accordance with its terms; and
(iii) it
will deliver to the Customer such evidence of such authorization as the Customer
may reasonably require, whether by way of a certified resolution or
otherwise.
17. Governing Law. This
Agreement shall be governed by the law of the State of
Illinois.
18. Submission to
Jurisdiction. To the extent, if any, to which the Customer or any of its
respective properties may be deemed to have or hereafter to acquire immunity, on
the ground of sovereignty or otherwise, from judicial process or proceeding to
enforce this Agreement or to collect amounts due hereunder (including, without
limitation, attachment proceedings prior to judgment or in aid of execution) in
any jurisdiction, the Customer hereby waives such immunity and agrees not to
claim the same. Any suit, action or proceeding arising out of this Agreement may
be instituted in any State or Federal court sitting in the City of Chicago,
State of Illinois, United States of America, and the Customer irrevocably
submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding and waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in such a court and any claim that such suit,
action or proceeding was brought in an inconvenient forum. The Customer further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
certified air mail return receipt requested, postage prepaid, to the Customer at
its address on the signature page hereof or in any other manner permitted by
law, such service to become effective upon the earlier of (i) the date received
as evidenced by the appropriate signature on the return receipt requested card
or (ii) any earlier date permitted by applicable law. Both parties agree to
waive all rights to a jury trial.
19.
Confidentiality. The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential information
provided by a party hereto shall be used by any other party hereto solely for
the purpose of rendering services pursuant to this Agreement and, except as may
be required in carrying out this Agreement, shall not be disclosed to any third
party without the prior consent of such providing party. The foregoing shall not
be applicable to any information that is publicly available when provided or
thereafter becomes publicly available other than through a breach of this
Agreement, or that is required or requested to be disclosed by any bank or other
regulatory examiner of the Custodian, Customer, or any Sub-custodian, any
auditor of the parties hereto, by judicial or administrative process or
otherwise by applicable law or regulation. The provisions of this Section shall
survive the termination of this Agreement.
20.
Severability.
If any provision of this Agreement is determined to be invalid or unenforceable,
such determination shall not affect the validity or enforceability of any other
provision of this Agreement.
21. Entire Agreement.
This Agreement together with any exhibits attached hereto,
9
contains
the entire agreement between the parties relating to the subject matter hereof
and supersedes any oral statements and prior writings with respect
thereto.
22. Headings. The
headings of the paragraphs hereof are included for convenience of reference only
and do not form a part of this Agreement.
23.
Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original. This Agreement shall become effective when one or
more counterparts have been signed and delivered by each of the parties
hereto.
24.
Signature
Authorization. The Customer Signatories appearing below are duly
authorized officers or agents of the Customer. The Customer shall deliver to the
Custodian a duly executed Secretary's Certificate in the form of Exhibit F
hereto, or such other evidence of such authorization as the Custodian may
reasonably require, whether by way of a certified resolution or
otherwise.
25.
Successor and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the successors of each of the Customer and the Custodian. This Agreement
shall not be assigned by a party hereto without the prior express written
consent of the other party. Notwithstanding the foregoing, any organization or
entity resulting from any merger, conversion or consolidation to which the
Custodian shall be a party and any organization or entity succeeding to all or
substantially all of the corporate trust business of the Custodian, shall be the
successor Custodian hereunder without the execution or filing of any paper or
any further act of any of the parties hereto.
10
IN
WITNESS WHEREOF, each of the parties hereto has caused its duly authorized
signatories to execute this Agreement as of the date first written
above.
| DMR Mortgage Opportunity Fund LP | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx, Xx. | |
| Name: Xxxxxxx X. Xxxxxx, Xx. | |||
| Title: President | |||
|
LASALLE
BANK NATIONAL ASSOCIATION,
as Custodian
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |||
| Title: Trust Officer | |||
Exhibit
A
Account
Information
| Account Name | Tax Id Number | Trust Account Number |
| DMR Opportunity Mortgage Fund | 41-22761884 | 711629 |
Federal
law requires all financial institutions to obtain, verify and record information
that identifies each customer for which an account is opened. This information
may include, but not be limited to the customer's legal entity name, business
address and tax or employer identification number.
A-1
Exhibit
B-1
Standing
Wire Instructions of Customer
Wire
Instructions:
Bank
Name: Bank of
America
ABA
No.:000-000-000
Account
No. 375-054-2382
Acct Name. Declaration
Management & Research LLC
Reference: MOF
Investment
Directions:
B-1
Account No.
711629
Exhibit
B-2
WIRE TRANSFER
AGREEMENT
This
Agreement governs all electronic funds transfers (including those made using fed
wire or any other funds transfer system, and internal and international funds
transfers) into and out of the accounts of (referred to herein as "you" or
"your") administered by the Trust Department of LaSalle Bank N.A. (the terms
"we", "our" or "us" refer to LaSalle Bank N.A.).
Processing Payment
Orders. You authorize us to charge your accounts and transfer funds on
your behalf, subject to the terms of this agreement. You agree to submit payment
orders in accordance with our procedures as they are periodically modified.
Those procedures include our standard format and cut- off hours by which we must
receive a payment order if such transaction is to be made that banking day. The
procedures are described in the Description of Wire Transfer Procedures
delivered to you (the "Supplement"). The terms and provisions of the Supplement
are incorporated into this agreement by this reference to it. You agree that we
may, but are not obligated to, record and retain telephone conversations
relating to the payment orders. You understand that we have no obligation to
process payment orders and that we are not obligated to do so if we are unable
to verify them in accordance with the Security Procedures, if they are not in
our format, if we are prohibited by applicable law from processing them, if you
do not have a sufficient balance of final, collected funds in your account to
cover such transaction, or if we are unable to execute them due to circumstances
beyond our control. We will attempt to execute cancellation and amendment
instructions to payment orders, however, we will not incur any liability as a
result of a failure to effect such cancellation or amendment, and if we act on a
cancellation or amendment instruction, you will indemnify us from all expenses,
costs, damages or other liabilities incurred by us in connection
therewith.
Security Procedures.
You agree to comply with, and to cause your authorized representatives to comply
with, the security procedures described in the Supplement (the "Security
Procedures"). The Security Procedures are designed to verify the authenticity
of, and not to detect errors in, payment orders. You agree to be bound by any
funds transfer payment order, whether or not authorized, issued in your name and
received by us in compliance with the Security Procedures. By communicating
payment orders to us, you agree that the Security Procedures are commercially
reasonable. If a payment order was authorized or issued by you (or on your
behalf) or you otherwise benefited from it, then you agree to be bound by that
payment order, whether or not we complied with the Security Procedures. If you
propose or adopt a procedure for communicating payment orders to us which varies
from the Security Procedures, then you agree to be bound by any payment order,
whether or not authorized, issued in your name and accepted by us in compliance
with the procedure adopted or proposed by you. However, we have no
obligation to accept any payment order that is not communicated to us in
compliance with the Security Procedures. The Security Procedures are in
addition to and do not limit or revoke the authority of any person (whether
course of dealing or otherwise) to deliver payment orders in your
name.
Reconciliation. You agree to notify us of any error or
unauthorized payment order
within fourteen (14) days from the date we notify you of execution of
the payment order whether by
written advice, telecopy, periodic account statement or any other means. Your
failure to notify us within this period will prevent you from asserting against us a
claim for lost interest on an erroneous or unauthorized payment order. Wire
transfer deposits to your account will be reflected on your periodic account
statement from us and you will not receive any other notice of those
deposits.
Reliance on Identifying
Number. You agree to be responsible for, and that we may rely on, the
information contained in any payment order issued by you or on your behalf. You
acknowledge that any beneficiary's bank and any receiving bank may pay or
otherwise process payment orders based on the bank account or other identifying
number of any bank, account or person contained in the payment
order, even if it identifies a bank, account or person different from the bank,
account or person identified by name. We (and any other receiving bank) may
rely on the information contained in any payment order issued by you, including
the account number or other identifying number of any bank, person
or account, even if that number does not correspond to the bank, person or
account identified by name.
Payments. You agree
to pay our fees in connection with processing payment orders in accordance with
our fee schedule as it may be periodically changed. You also agree to pay us the
amount of each payment order communicated to us in your name. Unless other
arrangements are made, your account will automatically be debited for the amount
of such fees and payments.
Governing Law; Change in
Terms. Illinois law will govern the transactions contemplated by this
agreement. You agree to be bound by the rules of all applicable funds transfer
systems. We may change the terms of this Agreement and the
Supplement at any time by notifying you of such change. You may add or delete
authorized persons by sending a properly authorized written notice to us. We
will act on your request within a reasonable time after receiving that
notice.
Provisional Payment.
All credits to your accounts for funds transfers which we receive are provisional
until we receive final settlement for the funds according to the rules of
the funds transfer system by which the funds have been transmitted. You
acknowledge and agree that we are entitled to a refund of the amount credited to
your account for a transfer if we do not receive final settlement.
Limits on Liability;
Indemnity. Our liability to you for any loss or damage arising from or related to
this agreement or any payment order will be limited to (i) direct damages
incurred by you attributable to our bad faith or willful misconduct and (ii)
interest losses you incur as a result of our failure to exercise ordinary care
resulting in our failure to execute, delay in executing or damages including
indirect, consequential or special damages. We will not be liable for any failure to
carry out, or delay in carrying out, any of our obligations under the
agreement if that failure or delay results from any cause beyond our reasonable
control. We will have no liability for any act or failure to act by any other
financial institution or third party, including funds transfer systems, or for any
inaccuracy or omission in a notice of communication received from another
financial institution or third party. You agree to indemnify and hold us
harmless from and against any and all claims, loss, liability or expenses,
including reasonable attorneys' fees and court costs, resulting directly or
indirectly from (i) our compliance with or carrying out any instructions or
request (including any payment order) which identifies you as originator, whether or
not authorized, if such instruction or request is accepted by us in good
faith and in accordance with the Security Procedures and (ii) our refraining
from executing a payment order after reasonable efforts to verify it have failed,
or in delaying execution until verification is obtained; however, you will not be
required to indemnify us against damages attributable to our own
gross negligence or willful misconduct. The provisions of this
paragraph will survive termination of the agreement.
Notices. Notices from
us will be sent to your address as it appears on our records at that time and will be
effective when received or 5 days after being mailed by U.S. mail, whichever is
earlier. Notices to us should be sent to your trust account officer at LaSalle Bank
N.A., 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and will be effective
when we have actually received and had a reasonable time to act upon them. You
agree that we may rely on any notices or instructions sent to us by
telecopy/facsimile as though they are originals.
Agreed to
as of April 30,
2008
_____________________________________________________________
By:
/s/ Xxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxx.,
Jr
Title: President, CEO
By:
Name:
Title:
B-2-1
Exhibit
K-2
Trust
Web Site Services Agreement
DMR
Mortgage Opportunity Fund LP ("Client") enters into this Trust Web Site Services
Agreement ("Web Site Agreement") with LaSalle Bank National Association
("LaSalle") to permit Client to access the online trust services selected by
Client on the Trust Web Site Services Enrollment Form ("Online Trust Services").
Online Trust Services can be accessed through the LaSalle web site located at
xxx.xxxxxxxxxxx.xxx.
1. Conditions
of Use
Client
agrees that use of Online Trust Services is subject to the terms of the
Disclaimer posted on the LaSalle web site and the Web Site Agreement
(collectively "Terms"), as they may be amended, and applicable laws and
regulations. The Terms are binding on Client, its employees, agents and
successors.
2. The
Service
Only
those accounts designated by the Client on the Trust Web Site Services
Enrollment Form ("Accounts") and approved by LaSalle may be accessed through
Online Trust Services. Client and its Designated Agents may use Online Trust
Services to access account and other information on Accounts based on the Online
Trust Services selected by the Client on the Trust Web Site Services Enrollment
Form. Account information accessible through Online Trust Services is at the
sole discretion of LaSalle and may change at any time. Although Online Trust
Services is intended to provide accurate and timely information, the information
obtained through Online Trust Services may not be accurate, complete or current
and may include technical inaccuracies or typographical errors. Additionally,
this information is prepared with, or based on, information received from one or
more third parties. Client should verify all information before relying on it
and decisions based on this information are Client's sole responsibility. Client
should contact LaSalle for additional information.
For
purposes of this Agreement, the Client's Designated Agents are those individuals
and/or entities designated and authorized by the Client to access the Online
Trust Services and the Client account information and statements provided under
this Agreement. The Client may appoint Designated Agents on Exhibit A or by
other written authorization acceptable to LaSalle. Client is solely responsible
for updating LaSalle of any modifications in or terminations of its Designated
Agents.
Accounts
remain subject to applicable laws, regulations, rules and other agreements
furnished to the Client in connection with the Accounts. LaSalle reserves the
right to restrict use of Online Trust Services for one or more types of Accounts
or transactions and to impose other limits or restrictions. Clients can only
obtain information through Online Trust Services for those Accounts that they
are authorized to access.
3. Security/Password
Client
agrees to safeguard Client's user identification code(s) ("ID") and password(s)
("Password") to access Online Trust Services, either issued to Client by LaSalle
or chosen by Client. Client agrees not to give or make available Client's ID and
Password to any unauthorized individuals. Client is responsible for all access
and activity conducted either by Client or its Designated Agents using its ID
and Password. Client shall immediately notify its Trust Administrative Officer
in writing if it believes that the ID or Password has been compromised, that
Client suspects unauthorized access to Online Trust Services, or when a
designated employee or agent, with a unique ID and Password, is no longer
permitted
K-2-1
access to
Online Trust Services. Client assumes all responsibility for any unauthorized
use of Online Trust Services by its Designated Agents or unauthorized
individuals who access Online Trust Services as a result of any action or
inaction on the part of a Designated Agent.
4. Online
Trust Services Availability
LaSalle
may discontinue or modify the information available on Online Trust Services at
any time without prior notice. LaSalle takes reasonable measures to ensure
Online Trust Services is available and operating correctly, however use of
Online Trust Services may be restricted or limited without notice.
5. Online
Statements and Records
Client
may elect online statement delivery in lieu of or in addition to mailed (paper)
account statements. If Client elects, LaSalle will provide account statements
and related documentation in an electronic (PDF) form that can be viewed and
printed at the discretion of Client or its Designated Agents. Online statement
delivery is subject to the following terms, conditions and
agreements:
|
|
(i)
|
Client
acknowledges and agrees, as a condition of its enrollment in online
statement delivery, that, if it elects to receive online statements only,
paper statements will no longer be mailed, and agrees that the online
statement and all other related online communications will satisfy all of
LaSalle's existing legal and contractual obligations to provide statements
and reports with respect to Client's
accounts;
|
|
|
(ii)
|
By
its election of online statements, Client represents and acknowledges that
it has the ability to access, view, and retain copies of the online
statements and the related documents, e-mail transmissions and web sites
that comprise LaSalle's online statement functionality. Client understands
that it is obligated to notify LaSalle to report any problems relating to
Client's ability to access its statements and related
documents;
|
|
|
(iii)
|
LaSalle
will provide Client with timely e-mail notification of online statement
availability to the e-mail address provided, in writing, by Client to
LaSalle. The e-mail notice will contain a web link to LaSalle's online
trust service page and will be sent from the LaSalle domain name -xxx.xxxxxxxxxx@XXXXXXX.xxx.
As a condition of receiving online statements, LaSalle may periodically
require Client to update its e-mail address
information;
|
|
|
(iv)
|
Client
acknowledges and understands that its election to receive online
statements will be effective for all periods following the election on an
ongoing basis unless Client cancels or modify its election or is otherwise
notified by LaSalle. Client understands that it may, at its sole
discretion, turn off online statement delivery at any time by providing
notice to your LaSalle account Administrator, in writing. Upon receipt of
this written notice, LaSalle will terminate online statements and provide
paper statements beginning with Client's next statement
cycle;
|
|
|
(v)
|
Online
statements will remain available for a period of up to 24 calendar months
from initial posting date which period may be modified at any time by
LaSalle at its sole and exclusive
discretion.
|
Depending
on the services selected, Online Trust Services can be used to print a statement
of transactions for Accounts. These printed statements are not considered
official records of LaSalle.
K-2-2
6. Disclaimers
of Warranty
ONLINE
TRUST SERVICES AND ALL INFORMATION, SERVICES, SOFTWARE AND OTHER MATERIALS
PROVIDED THROUGH ONLINE TRUST SERVICES ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS
OR IMPLIED WARRANTY OF ANY KIND. LASALLE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM
ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY,
QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
LASALLE
DOES NOT GUARANTEE SECURITY OF ONLINE TRUST SERVICES OR PREVENTION FROM LOSS OF,
ALTERATION OF, OR IMPROPER ACCESS TO THE ACCOUNT INFORMATION OR DATA. LASALLE
MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, RELATING TO
OR RESULTING FROM THE USE OF OR INABILITY TO USE ONLINE TRUST SERVICES,
MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, DELETION OF FILES, LOSS OR
MODIFICATION OF CONTENT OR DATA, ERRORS, DEFECTS, MISDELIVERIES, DELAYS IN
OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED
TO CIRCUMSTANCES BEYOND ITS CONTROL, COMMUNICATION FAILURE, THEFT, DESTRUCTION
OR UNAUTHORIZED ACCESS TO ANY SERVER, RECORDS, PROGRAMS OR
SERVICES.
7. Limitation
of Liability
IN NO
EVENT WILL LASALLE OR ITS AFFILIATES, SUPPLIERS, CONTRACTORS, SERVICE PROVIDERS,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING
WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES ARISING IN CONNECTION WITH ONLINE TRUST SERVICES OR IN CONNECTION WITH
THE USE OF OR INABILITY TO USE ONLINE TRUST SERVICES INCLUDING WITHOUT
LIMITATION DAMAGES FOR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION,
INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE
SYSTEM FAILURE, OR LOSS OR MODIFICATION OF CONTENT OR DATA, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. NO THIRD PARTY SHALL HAVE ANY RIGHT OR CLAIM
UNDER THIS AGREEMENT.
8. Privacy
LaSalle
will protect the confidentiality of all personally identifiable information that
it receives, as provided in LaSalle's Statement of Privacy Principles, as it may
be amended.
9. Termination
Client
must promptly notify LaSalle if Client wishes to discontinue use of Online Trust
Services or any service that is part of Online Trust Services.
LaSalle
may terminate Client access to all or part of Online Trust Services at any time
with five days' prior notice. LaSalle may terminate Client access to all or part
of Online Trust Services at any time, without prior notice, if Client's Account
is closed, Client fails to comply with any of the terms of this Agreement, or,
if in LaSalle's sole judgment, Client's use of Online Trust Services presents a
security risk.
K-2-3
10. Amendments
LaSalle
may alter or amend the terms of this Web Site Agreement by sending written
notice to Client at Client's address as it appears on our records. Client's use
of Online Trust Services after LaSalle sends Client notice of any change or
amendment constitutes Client's agreement to the change.
11. Assignment
LaSalle
may assign or delegate its rights and duties under this Web Site Agreement to a
parent, affiliate or subsidiary entity or third party at any time without notice
to Client. Client's rights under this Agreement may not be assigned without LaS
alle's prior written consent.
12. General
This
Agreement shall be governed by Illinois law and is subject to all applicable
state and federal laws and regulations. LaSalle may enforce any of its rights
under the Agreement even if it chooses not to exercise any right in a particular
circumstance. The invalidity of any provision of this Agreement shall not affect
other provisions.
All
representations regarding liability and warranties, including but not limited
to, the Disclaimers of Warranty and Limitation of Liability sections of this
Agreement, shall survive termination of the Agreement.
|
LaSalle
Bank National Association
|
Client
|
||
| By: /s/ Xxxxx Xxxxxxx | By: /s/ Xxxxxxx X. Xxxxxx, Xx. | ||
|
Name:Xxxxx
Xxxxxxx
|
Name: Xxxxxxx
X. Xxxxxx, Xx.
|
||
|
Title: Trust
Officer – CDO Trust Services
|
Title: President,
CEO
|
||
|
Date:
04/30/08
|
Date: April
30,2008
|
Xxxxx
Xxxxxxx
Trust
Officer
K-2-4
